On Sunday, Jewish law killed a 55-year old American-Israeli man. Rabbi Yossie Raichik died of a lung infection. He was waiting in Israel, where he had lived for almost 30 years, for a transplant to replace his irreversibly damaged lungs. It could have saved his life. It did not because the donor organs that matched him did not arrive.

Raichick headed Chabad’s Children of Chernobyl project. Children of Chernobyl took children from the area around Chernobyl’s exploded nuclear reactor and brought them and their families to Israel for medical treatment. Raichik brought more than 2500 children to Israel during the 22 years since the disaster. He is said to have played a role in airlifting Jewish children out of Iran just after the revolution ushered in what became the Islamic regime.

Raichik’s transplant didn’t come because the donor’s family insisted on consulting with an unnamed leading Israeli ultra-Orthodox rabbinic expert before allowing the transplant. While the rabbi investigated, the woman’s heart failed and the organs – including the lungs that could have saved Raichik – were lost. Raichik died soon after.

Unlike kidneys and livers, which if necessary can be removed immediately after cardiac death, lungs must be taken while the donor’s heart is still beating. This means the only way to get lungs for transplant is to take them from patients who are brain stem dead, or from Chinese political prisoners killed by the government for their organs.

Orthodox rabbinic interpreters of Jewish law seem united in their opposition to the Chinese option, as everyone should be. But they are divided on the validity of brain stem death, and it was this divide that killed Yossie Raichick.

The Jerusalem Talmud, the older brother of the commonly studied and followed Babylonian Talmud, defines death as the complete, irreversible cessation of breathing. This is defined in two ways: 1) No discernible air exhaled or inhaled through the nose, and 2) No respirations discernible by intently studying the navel area (i.e., the diaphragm).

Manuscript versions of the Babylonian Talmud follow this reading, including the versions used by leading medieval scholars like Isaac Alfassi, Nachmanides, Rabbi Asher ben Yechiel, and many others.

But one medieval scholar living in what was then the remote hinterland of Jewish communities had a manuscript with a different reading. Unfortunately for Raichik and many others, that scholar was Rashi, and Rashi wrote what is considered the seminal commentary on the Talmud. When the printing press came into use hundreds of years after Rashi’s death, Rashi’s commentary was printed alongside the main text of the Babylonian Talmud.

Rashi’s version of the Talmud replaced the word “navel” with the word heart, so death was defined by complete cessation of breathing and heartbeat. Printers apparently amended the text of the Talmud to match Rashi’s commentary.

Rashi’s opinion makes most transplants impossible.

For hundreds of years, Jews determined death by placing a feather at the nostrils and intently watching for signs of breathing. If there were none after a few minutes, the person was declared dead.

(This was by no means foolproof. Rarely, faint breathing was missed by the observers. This sometimes led to ‘corpses’ “coming back to life” in their coffins.)

With the advent of modern medical technology came ventilators and cardiac resuscitation devices. Suddenly, stopped hearts could be restarted and lungs too weak to breathe adequately on their own could be assisted.

These and many other advanced medical treatments have allowed very physically compromised people to live, and some eventually to recover.

Eventually, improved medical technology brought the potential for organ transplantation. But along with organ transplantation came a renewed concern about how to determine when a person is really, truly dead.

Medical science uses brain stem death to define death in applicable cases. Brain stem death is like decapitation. Without a living brain stem, a person can never breathe independently. He can never regain consciousness. He can never function in any way, however compromised. And, like decapitation, brain stem death is irreversible.

If a brain-stem-dead patient is removed from his ventilator, his body will make no visible or measurable effort to breathe, and his heart will fail.

Based on this, Rabbi Moshe Feinstein (d. 1986), the leading American ultra-Orthodox rabbi of his era, accepted brain stem death as death, allowing viable organs to be taken from brain-stem-dead patients.

But many Israeli ultra-Orthodox rabbis disagreed. Even with special tests devised to prove lack of both spontaneous breathing and lack of brain function, these rabbis refused to accept brain stem death as death.

Why?

In the words of nonagenarian ultra-Orthodox leader Rabbi Yosef Shalom Elyashiv – posted across Jerusalem and published in ultra-Orthodox papers in late March after Israel passed an organ donation bill recognizing brain stem death as death – “[A]s long as the heart is still pumping blood, even in the case of 'brain death,' it is not permitted to remove any organ from the patient.” And, under banner headlines proclaiming, “Thou Shalt Not Murder!,” Elyashiv and his followers called reliance on brain stem death “murder.”

It was those words that apparently caused the donor’s family to delay donation, and it was those words that apparently caused the leading ultra-Orthodox rabbi they asked for advice to himself delay.

Taking Elyashiv’s position to an illogical extreme, it could be argued that a decapitated person with a beating heart and a surgically closed neck wound is fully alive, even though headless. Indeed, two rabbis, Hershel Schachter and J. David Bleich, both associated with Manhattan-based Yeshiva University’s right wing, have done just that. To them, the complete absence of a head does not signify death. Schachter is to Modern Orthodoxy what Elyashiv is to ultra-Orthodoxy – the top guy.

Speaking at an Orthodox medical ethics conference in 2006, Schachter makes significant errors of medical fact, avers that heart and lung transplantation is murder – even though he acknowledges the donor’s entire brain may be irreversibly dead – and misrepresents the original decision of Israel’s Chief Rabbinate permitting such transplants. In response to a question from a physician, who asks Schachter if he permits Jews to take a donated heart when that heart has come from, in Schachter’s opinion, a “murder,” Schachter answers by saying many rabbis permit taking these organs because the “doctors” will “murder” the patient anyway.

The truth, however, is significantly different. The only organs removed from a donor are organs for which there is a recipient match within the immediate geographic area. If no such match exists, no organs are taken. Schachter and many of the other rabbis who permit taking organs but not donating organs must be aware of this. They simply ignore the truth out of expediency.

It would be one thing if Elyashiv, Schachter, and their followers refrained from accepting donated organs. But they don’t. While forbidding donating organs, Elyashiv and Schachter have said nothing about not taking them. Their followers who need organs take organs, often displacing people on recipient lists who are, themselves, potential donors registered with various organ donation programs, including the Halachic Organ Donation Society.

This, along with the traditional Jewish desire to bury the body intact, has caused a dire shortage of organs in Israel. This shortage is made worse because Israelis cannot get organs from many other countries. Why? Because of the shortage, Israel cannot provide those countries with anything like reciprocity. Israelis are seen as takers of organs but not as givers. If not for the unusual generosity of the United States, Israelis would have few places to turn.

This perception of Jews as organ takers but not givers extends to communities worldwide with large Orthodox communities. This has sparked fears that countries will start banning all Jews, not just Israelis, from receiving donated organs.

Elyashiv and his fellow travelers claim they object to brain stem death because they want to protect the sanctity of life, and this may be the case. But medical science has advanced exponentially since the Talmud was compiled in the 8th century. Just as Orthodox Jews benefit from those advances, the Jewish law they follow needs to take these advances into account. Just as we do not mix the potions described in the Talmud to cure illness, and we do not follow its diet recommendations to promote health, we should not be basing something as important as death on 1300 year old Talmudic science – or on a 500 year old printer’s error.

Yossie Raichik’s donor died. So did Yossie Raichik. It didn’t have to be that way.

Failed messiah was established and run in 2004 by Mr. Shmarya (Scott)Rosenberg. The site was acquired by Diversified Holdings, Feb 2016. .We thank Mr. Rosenberg for his efforts on behalf of the Jewish Community.

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